gation, and upon the ability of the the court did not err in denying the defendant to do so. The discretion motion. is to be exercised in view of the con- The judgment of the Appellate ditions and circumstances of the Court is affirmed. case. The bill failed to allege that

Mr. Chief Justice Carter dissents. the complainant was enabled to support herself and pay the expenses of Petition for rehearing denied, Dethe suit and there was no other evi

cember 6, 1917. dence of that fact. The bill alleged that the defendant was a saloon keeper, owning three pieces of real

NOTE. estate in Chicago, and that his net income was $600 per month. The

The reported case (ARADO V. ARADO, answer admitted that the appellee ante, 28) holds that public policy was in the saloon business and owned precludes the application of the maxseveral pieces of real estate, but de- im that "he who comes into equity nied that he had the income alleged, must come with clean hands,” to a

, and in the cross bill he alleged that

person seeking to set aside a marriage the appellant was possessed of a separate and private income of about

within the prohibited degrees of con$250

month.

sanguinity. For a full discussion of Appeal-denial

per of alimony- All these pleadings

that maxim, see the note following were verified, and in LANGLEY V. DEVLIN, post, 44. the absence of any further showing

error.

W. J. LANGLEY et al., Appts.,

V.
A. J. DEVLIN et al., Respts.,

and
A. W. VOWELL et al.

Washington Supreme Court (Dept. No. 1) — March 2, 1917.

(95 Wash. 171, 163 Pac. 395.) Equity meaning of maxim as to clean hands.

1. The maxim, "He who comes into equity must come with clean hands," and “He who seeks equity must do equity,” mean no more than that he who has defrauded his adversary to his injury in the subject matter of the action will not be heard to assert a right in equity.

[See note on this question beginning on page 44.] Evidence — credibility - pecuniary and contradicted by circumstances in interest.

evidence is not decisive upon court or 2. Where the truth is made to de.

jury. pend upon the pecuniary interest of a [See 10 R. C. L. 1006.] witness who has no interest in the

witness deserting to other side. subject-matter of the suit, his utter

4. Where a witness works industriances should not be accepted unless

ously on one side of a case, and then his testimony is supported by credible turns up on the other side and betrays witnesses, or by circumstances that

the confidence reposed in him, he is cannot be denied.

not to be believed. [See 10 R. C. L. 1004.]

Dismissal for attempt to suppress weight testimony explained testimony. away.

5. That plaintiff tried to suppress 3. Testimony fairly explained away testimony does not require dismissal

(95 Wash. 171, 163 Pac. 395.) of the cause in disregard of the mer- the transaction, in defrauding another its, if it is uncertain whether the ato co-owner who is not complaining, does tempt took other form than mere not, under the maxim that "he who persuasion, and the testimony is forth- comes into equity must come with coming before the court is called up- clean hands,” deprive them of the on to pass judgment upon the merits. right to sue those who defrauded them (See 9 R. C. L. 204.]

to recover damages for the fraud. Action arising from bad cause

[See 10 R. C. L. 389–391.] maxim.

-equal equities - legal rights. 6. The maxim, “Ex turpi causa non 8. If the equities are equal the oritur actio," does not prevent actions rights of the parties should be measfor fraud in inducing a contract, in ured by the rules of law. the subject-matter of which there is no [See 10 R. C. L. 385, 386.] evil, merely because evil in which the Limitation of actions defense opposing party was the first actor fol

when established. lowed its execution.

9. The defense of the Statute of [See 1 R. C. L. 317.)

Limitations should never be resorted Equity maxim clean hands to to defeat positive equities unless fraud on stranger.

the bar is established by testimony 7. That parties defrauded by co- having the earmarks of truth in sufii. owners of a mine into making a pre- cient degree to appeal to a court of tended sale to a stranger make com- conscience. mon cause with such co-owners, after [See 17 R. C. L. 735, 736.]

APPEAL by plaintiffs from a judgment of the Superior Court for Spokane County (Huneke, J.) dismissing an action brought to recover their proportionate share of a one-tenth interest in certain coal-mining property, which respondents had retained, alleged to have been fraudulently concealed from plaintiffs and others interested in the property. Reversed.

The facts are stated in the opinion of the court..

Messrs. Cannon & Ferris, for appel- The Anne, Fed. Cas. No. 7,370; Bourda lants:

v. Jones, 110 Wis. 52, 85 N. W. 671; The orders requiring plaintiffs to Day v. Brown, 18 Grant, Ch. (U. C.) amend their complaint and bring into 681; 14 Enc. Ev. 119, note 49; 6 Enc. the action additional parties were er- Ev. 10; Landis v. Wintermute, 40 roneous.

Wash. 673, 82 Pac. 1000. State ex rel. Langley v. Superior Ct. The doctrine of laches does not ap73 Wash. 110, 131 Pac. 482.

ply. If it had been established as a fact Hotchkin v. McNaught-Collins Imthat any of defendants had an interest prov. Co. 67 Wash. 206, 121 Pac. 455; in the stock in question, the only ef- Williams v. Neely, 69 L.R.A. 232, 67 fect this could have would be to re- C. C. A. 171, 134 Fed. 1; Kreielsheimer duce the amount of plaintiffs' recovery v. Gill, 85 Wash. 175, 147 Pac. 871. to that extent.

The doctrine of “clean hands,” conFrick v. Washington Water Power tended for by respondents, does not Co. 76 Wash, 12, 135 Pac. 470.

apply. Where the witness gives his evi- Clemens v. Clemens, 28 Wis. 637, 9 dence it must speak for itself, and the Am. Rep. 520; Blakesley v. Johnson, 13 rule that the suppression of evidence Wis. 531; Harvey v. Varney, 98 Mass. raised a presumption against the party 118; Rozell v. Vansyckle, 11 Wash. 79, has no application.

39 Pac. 270; Harper v. Harper, 85 Ky. Harrison v. Harrison, 124 Iowa, 525, 160, 7 Am. St. Rep. 583, 3 S. W. 5; 1 100 N. W. 344; Bott v. Wood, 56 Miss. Story, Eq. Jur. § 300; 2 Pom. Eq. Jur. 136.

§ 942; Melbye v. Melbye, 15 Wash. 648, The conduct of the Langleys in their 47 Pac, 16; Bateman v. Fargason, 2 relations with respondents, from the Flipp. 660, 4 Fed. 32; Bispham, Prindate of the sale in 1905 until O'Neill ciples of Equity, 6th ed. p. 62; Mctold them of the fraud in 1911, is in- Donald v. Lund, 13 Wash. 412, 43 Pac. consistent with the fact that they had 348; Huntzicker v. Crocker, 135 Wis. knowledge of the fraud.

38, 115 N. W. 340, 15 Ann. Cas. 444; Moore, Facts, § 1139; Johnson v. Hardy v. Stonebraker, 31 Wis. 640, 7

Mor. Min. Rep. 10; Employing Print- Ga. 464, 42 S. E. 732; Lawton v. Estes, ers' Club v. Dr. Blosser Co. 122 Ga. 167 Mass. 181, 57 Am. St. Rep. 450, 45 509, 69 L.R.A. 90, 106 Am. St. Rep. N. E. 90; Stirtan v. Blethen, 79 Wash. 137, 50 S. E. 353, 2 Ann. Cas. 694; 10, 51 L.R.A.(N.S.) 623, 139 Pac. 618; Pitzele v. Cohn, 217 Ill. 30, 75 N. E. Smith v. David B. Crockett Co. 85 392; Chicago v. Union Stock Yards & Conn. 282, 39 L.R.A. (N.S.) 1148, 82 Transit Co. 164 Ill. 224, 35 L.R.A. 281, Atl. 569; Dent v. Ferguson, 132 U. S. 45 N. E. 430; Luebke v. Salzwedel, 157 50, 65, 66, 33 L. ed. 242, 247, 248, 10 Wis. 601, 147 N. W. 831; Bonsack Sup. Ct. Rep. 13; Wheeler v. Sage, 1 Mach. Co. v. Smith, 70 Fed. 383; Wall. 518, 17 L. ed. 646; Primeau v. Lewis's Appeal, 67 Pa. 166; Upchurch Granfield, 114 C. C. A. 549, 193 Fed. v. Anderson, Tenn. —,52 S. W. 917; 911; Farrington v. Stucky, 91 C. C. A. Davidson v. Carter, 55 Iowa, 117, 7 N. 311, 165 Fed. 331; Clark v. Buffalo W. 466; Donnelly v. Rees, 141 Cal. 56, Hump Min. Co. 58 C. C. A. 607, 122 74 Pac. 433; Wright v. Stewart, 130 Fed. 243, 22 Mor. Min. Rep. 672; ConFed. 905, 77 C. C. A. 499, 147 Fed. tinental Wall Paper v. Lewis Voight & 321; Bellamy v. Bellamy, 6 Fla. 62. ns Co. 19 L.R.A.(N.S.) 143, 78 C. C.

Messrs. Post, Avery, & Higgins, Rob- A. 567, 148 Fed. 939; Reed v. Johnson, ertson & Miller, and John P. Gray, for 237 Wash. 42, 57 L.R.A. 404, 67 Pac. respondents:

381; Bolt v. Rogers, 3 Paige, 154; The plaintiffs not only are unworthy Crosby v. Buchanan, 23 Wall. 420, 23 L. of belief, but they have come into ed. 138; Kitchen v. Rayburn, 19 Wall. court with unclean hands, and because 254, 22 L. ed. 64; Oscanyan v. Winchesof their attempt to impose upon the ter Arms Repeating Co. 103 U. S. 261, court they are entitled to no relief un- 26 L. ed. 539; Cumberland Teleph. & der any circumstances.

Teleg. Co. v. Evansville, 127 Fed. 187; Fowler v. Fowler, 204 Ill. 82, 68 N. Luhrig Coal Co. v. Jones & A. Co. 72 E. 414; Crosby v. Buchanan, 23 Wall. C. C. A. 311, 141 Fed. 617; McConnell 420, 23 L. ed. 138; Crocker v. Boyd, v. Camors-McConnell Co. 152 Fed. 321; 88 Wash. 685, 153 Pac. 1076; Huben- Levy v. Kansas City, 22 L.R.A.(N.S.) thal v. Creighton, 81 Wash. 688, 143 862, 93 C. C. A. 523, 168 Fed. 524; Pac. 98; Hartman v. Belden, 38 Wash. Hazelton v. Sheckells, 202 U. S. 71, 78, 655, 80 Pac. 806.

50 L. ed. 939, 941, 26 Sup. Ct. Rep. If the testimony of plaintiffs was 567, 6 Ann. Cas. 217; Continental Wall not contradicted by any witness, they Paper v. Louis Voight & Sons Co. 212 would have failed to establish by evi- U. S. 227, 262, 53 L. ed. 486, 505, 29 dence clear, cogent, and convincing, Sup. Ct. Rep. 280. those facts legally necessary to relieve He who seeks equity must do equity. them from their laches, or to remove 2 Pom. Eq. Jur. § 910; Allen v. Wall, the bar of the Statute of Limitations, 7 Wash. 316, 35 Pac. 65; Davis v. Ford,

Kline v. Galland, 53 Wash. 504, 102 15 Wash. 118, 45 Pac. 739, 46 Pac. Pac. 440; Twin-Lick Oil Co. v. Mar- 393; Hanna v. Haynes, 42 Wash. 289, bury, 91 U. S. 587, 23 L. ed. 328, 3 Mor. 84 Pac. 861; Deppen v. German-AmeriMin. Rep. 688; Patterson v. Hewitt, can Title Co. 24 Ky. L. Rep. 1110, 70 195 U. S. 309, 49 L. ed. 214, 25 Sup. Ct. S. W. 868. Rep. 35; Johnston v. Standard Min. All persons are to be made parties Co. 148 U. S. 360, 370, 37 L. ed. 480, who are either legally or equitably in485, 13 Sup. Ct. Rep. 585, 17 Mor. Min. terested in the subject-matter and reRep. 554; Wood v. Carpenter, 101 U. sult of a suit, if they are within the S. 135, 25 L. ed. 807; Cunningham v.

jurisdiction and it is in a general Independence Consol. Min. Co. 58

sense practicable so to do. Wash. 380, 108 Pac. 956; Ferrell v.

2 Story, Eq. Jur. § 1526; Chadbourne Lord, 43 Wash. 667, 86 Pac. 1060;

v. Coe, 2 C. C. A. 327, 10 U. S. App. Stewart v. Yesler Estate, 46 Wash. 256, 89 Pac. 705.

78, 51 Fed. 479; Sioux City Terminal

R. & Warehouse Co. v. Trust Co. of Through fraud and misrepresentation plaintiffs sought to get and did

N. A. 27 C. C. A. 73, 49 U. S. App. 523, get more of the “partnership" funds

82 Fed. 124; Bell v. Donohoe, 8 Sawy. than they were entitled to. Under set

435, 17 Fed. 710; Goodman v. Niblack, tled legal and equitable principles, no

102 U. S. 556, 26 L. ed. 229; Moore v. court, not even a court of law, will Gilmore, 16 Wash. 123, 58 Am. St. Rep. give heed to the wail of appellants. 20, 47 Pac. 239; State ex rel. Adjust

Williams v. Kendrick, 105 Va. 791, ment Co. v. Superior Ct. 67 Wash. 355, 54 S. E. 865; Bagwell v. Johnson, 116 121 Pac. 847.

.

(95 Wash. 171, 163 Pac. 395.) Chadwick, J., delivered the opin- lowed by the court upon the theory ion of the court:

that others interested would not be Appellants brought this action to bound by any judgment that might recover their proportionate share of be entered. A new trial was ora one-tenth interest in certain coal dered with directions to bring in mining property which respondents new parties. Disclaimers were obPage and Devlin had retained, and, tained from all of the other parties, as it is alleged, fraudulently con- save one or two who had been witcealed from plaintiffs and others in- nesses upon the trial. Appellants terested in the property, when they then began an original proceeding passed the title to the Corbin Coal in this court, praying for a writ of & Coke Company, the present own- certiorari, seeking to compel the er. It is not denied that there was entry of a judgment in accordance originally a mutuality of interest in with the finding of the court. This the property, but defendants con- court held against their contention. tend that they took an option upon State ex rel. Langley v. Superior Ct. the several interests of their co-own- 73 Wash. 110, 131 Pac. 482. It was ers at a price that was satisfactory afterwards held that the testimony to them, and thereafter sold the taken upon the so-called new trial property in due course of business should be supplemental only to the to Mr. Corbin.

testimony that had already been takAppellants insist that the prop- en (Langley v. Devlin, 87 Wash. 592, erty was sold under the option plan, 151 Pac. 1134), so that the trial upon the false representation made really proceeded as if the order by respondents to the other parties granting a new trial had been to rethat Mr. Corbin was interested in open the case for additional testithe property ; that he would pay no mony. When the case again came on more than $125,000 for the proper- for hearing, the question whether ty, being $25,000 to each of the ap- appellants knew of the retention of pellants and respondents, and $25,- the stock more than three years be000 for the other interests; that Mr. fore the action was begun became Corbin would not deal with any of the paramount issue. The statute the several partners other than re- is: "An action for relief upon the spondent Page; that, at the time, it ground of fraud, the cause of action was actually understood between in such case not to be deemed to Page and Devlin and one Roberts, an have accrued until the discovery by employee of Mr. Corbin, who had the the aggrieved party of the facts conmatter in charge, that Mr. Corbin stituting the fraud.” Rem. Code would take the property at a price 1915, § 159, subd. 4. in money and a retained interest, At the conclusion of the trial, the aggregating a value greatly in ex- court adhered to its finding that cess of the sum represented as the there had been a fraudulent concealextreme price he would pay. The

ment of the fact that the respondent money paid to the several partners partners had retained a one-tenth by Page and Devlin was the money interest in fraud of the rights of the paid by Mr. Corbin to them. The

appellants, but found, as a fact, that Corbin Coal & Coke Company was

appellants had knowledge of the organized, and one-tenth of the stock

fraud more than three years before was issued to Page and Devlin.

the action was begun. Judgment of The case was made up on the is

dismissal was accordingly entered in sues of fraud and the Statute of favor of respondents. Limitations. After a trial on the

The case comes to us upon the merits, the court below found with whole record. For present purthe appellants, and made findings

poses, the statement of the facts in and conclusions upon the issue of the case of Galbraith v. Devlin, 85 fraudulent concealment. A motion Wash. 482, 148 Pac. 589, is sufficient. for a new trial was made and al- We are satisfied the finding of the

66

trial judge in this case (essentially the reach of a judgment. O'Neill, the same facts were found by an- now denies that he furnished origother trial judge in the Galbraith inal information, or told appellants Case), that respondents were guilty what they did not know, but the fact of a fraud upon those who had mu- remains that, immediately after he tual interests in the property, is sus- had suggested a lawsuit, appellants tained by a preponderance of the went to a lawyer in Los Angeles, in testimony. The only issue, then, is or in the vicinity of which city the whether appellants were barred by parties all lived, and submitted the the Statute of Limitations.

facts to him. The attorney told Appellants contend that they did them he thought they had a case, not know that respondents had re- and advised them to go to Spokane tained a stock interest until about to begin their suit. Spokane was December 20, 1911. The action was the home of the corporation. begun January 8, 1912. They admit O'Neill gave W. J. Langley a letter that they knew that Page and Devlin of introduction to Mr. Cannon, then were interested in the property, but and now a practising lawyer in Spoinsist that Page and Devlin, by con- kane. After a consultation, Mr. duct and actual representation, fos- Cannon inquired directly of Mr. tered the understanding that Mr. Corbin or the officers in charge of Corbin was hard up at the time the the company, and finding the fact to sale was made, and that they, hav- be that Devlin and Page had reing confidence in the property, had tained a one-tenth interest, began put $47,000 back into the property suit without further delay. and had become interested as pur- After the motion for a new trial chasers of the stock. One fact is had been granted and pending the prominent, that Page and Devlin second hearing, O'Neill fell out with said nothing to either of the appel- appellants because, as he contends, lants that would suggest an owner- they had not given him, or because ship other than as might have been they refused to sign an agreement to acquired by purchase, or which could give him, twenty shares of the stock be construed as even an indirect dis- they hoped to recover. In the meanclosure of the fact that they had re- time, and before the writing of a lettained one tenth of the property, al- ter to W. J. Langley, charging him though, up to the time this action with refusing to abide his contract, was begun, the parties met fre- Page and Devlin paid O'Neill the quently and were on good terms, and $7,500 which they had theretofore at least one of the appellants was repudiated. Moved, apparently, by interested in other investments with the double motive of a new love for them.

Page and Devlin and a newly Appellants testify that their first hatched hatred for appellants, knowledge of the fact came from O'Neill seems to have given way to one J. J. O'Neill, theretofore a his admitted disposition to "get friend of all parties, but who admits even" with appellants, and became a that, in revenge against Page and partisan and a witness for the reDevlin, who he claims had beaten spondents. The court below rejecthim out of $7,500 in another deal, ed his oral testimony, but did give and to "get even” with them, he credence to the letter which he had went to W. J. Langley and told him written to W. J. Langley, wherein that Page and Devlin had defrauded he complained that he, Langley, was the other partners by secretly re- not playing fair, in that he had not taining a one-tenth interest in the delivered, or agreed in writing to deproperty, and that they had a cause liver, twenty shares of the stock to of action against them; that the ac- be recovered as before mentioned, in tion should be begun at once, as the which letter he said: "Now that you company would have a meeting soon have won, you think all danger is and the stock might be put beyond over for any of the methods to come